Commercial Bank v. Western Reserve Bank
Ohio Supreme Court
These suits are a bill and cross-bill in chancery from Cuyahoga county, to settle liens and priorities between creditors, by judgment and otherwise, of Clarke and Willey. *Tbe Western Reserve Bank recovered judgment, by cognovit, against James Clarke, Willey, and Edmund Clarke, on May 12, 1837. Edmund Clarke is really a surety, but the judgment is entered against the defendants generally, without any certificate of the fact.
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These suits are a bill and cross-bill in chancery from Cuyahoga county, to settle liens and priorities between creditors, by judgment and otherwise, of Clarke and Willey. *Tbe Western Reserve Bank recovered judgment, by cognovit, against James Clarke, Willey, and Edmund Clarke, on May 12, 1837. Edmund Clarke is really a surety, but the judgment is entered against the defendants generally, without any certificate of the fact. On June 19, 1837, a writ of error was prosecuted, by which proceedings were stayed until affirmance of the judgment, in August, 1838. In November, 1838, execution was…
1Opinion of the CourtLane, C. J.
It is first necessary to determine the character of Edmund Clarke. He came into the debt as surety, has signed the cognovit without designating his position, and suffered judgment to be taken without any certificate of the fact. Whether a surety can claim his privileges after judgment is a point which has given rise to conflicting opinions, and, in recent cases, the doctrine is doubted or denied. 16 Eng. Com. Law, 273; Bay’s Adm’r v. Tallmadge, 5 Johns. Ch. 305; Lennox et al. v. Prout, 3 Wheat. 520. But I am instructed *by my brethren to announce it as the opinion of a majority of the court…
2Cases cited3 opinions
- Lenox v. ProutSupreme Court of the United States · 1818
- Bay v. TallmadgeNew York Court of Chancery · 1821
- Bolte v. Van RootenNew York Supreme Court · 1809